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Definition Of Resisting An Executive Officer

Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment.

How Does the Prosecutor Prove I Resisted An Executive Officer?

You willfully4 and unlawfully used violence or threat5 of violence6 to try to prevent/deter an executive officer from performing his/her lawful duty7

You intended8 to prevent/deter the executive officer from performing his/her lawful duty

For example: If a person who telephones an off-duty police officer at his or her home and threatens to kill the officer if he or she continues to pursue a lawful investigation the following day or week may be convicted of resisting an executive officer, the first type of offense under section 69 (i.e. attempt), even though the officer was not engaged in the performance of his or her duties at the time the threat was made.9

When you acted, you knew the executive officer was performing his/her duty11

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Who Can Be Charged With Resisting A Police Officer?

Anyone who attempts, with specific intent, to prevent an officer from performing his lawful duty, OR anyone who with general intent uses force or a threat of force to do the same can be charged with the offense. To be charged with the offense, the defendant had to have acted both “willfully”12 and “unlawfully.”13

How Can I Fight A Charge Of Resisting A Police Officer?

There are several defenses that your attorney can assert on your behalf to fight a charge of resisting an executive officer under penal code 69. Here are the most common ones:

(a) The officer’s conduct was unlawful:

If you were attempting to stop an executive officer’s conduct that was unlawful, you have not committed the offense: for example, if the Defendant tries to stop an officer who is acting unlawfully by threatening to report him/her, the Defendant’s threat is lawful.

Similarly, if the defendant actually uses force to prevent the officer’s unlawful conduct, the Defendant’s act does not fall within the scope of this offense.

(b) Self-defense: If an officer uses unlawful force against you, you are entitled to resist his force against you by using reasonable force. Such resistance will not be considered to fall within the scope of this offense, because the officer’s unlawful force against you is no longer considered to be a performance of his duties.

(c) Recording or Photographing Officer: If the officer attempted to prevent you from recording or photographing the officer this does not fall under the scope of preventing an executive officer from performing his duty14

What Are The Penalties And Punishment For Resisting An Executive Officer?

The severity of the penalties and sentencing under California Penal Code 69 PC depends on several factors, including your criminal history and the severity of the offense15. For example, the sentencing guidelines differ as follows when the circumstances surrounding your case make it a misdemeanor as opposed to a felony:

A misdemeanor offense under this code section is punishable by:

A fine of up to $10,000; and

Imprisonment in a county jail of up to but not exceeding one year.

A felony offense under this code section is punishable by:

A fine of up to $10,000; and

Imprisonment in a county jail for a period of 16 months, or 2-3 years, depending on the seriousness of the felony.

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Choosing An Attorney

The state of California has implemented tough laws against resisting an officer, and you may be arrested for resisting an officer under this code section in California. Individuals who are facing charges of resisting an executive officer may have concerns about the serious penalties of this offense such as jail time and fines. If you are facing these charges, you may have questions about whether your charges can be reduced or dismissed to avoid criminal prosecution.

At the Aizman Law Firm, our experienced attorneys can help you with questions you might have about resisting an officer charges, If you need to speak to an attorney about your case, please call our office at: (818) 351-9555.

Request A Free Consultation 818-351-9555

Footnotes

An executive officer is a government official who may use his or her own discretion in performing his or her job duties. Some examples of an executive officer are: peace officer or commissioner. CALCRIM 2651 [↩]

As long as the threat reasonably appears to be a serious expression of intention to inflict bodily harm and its circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out, a statute proscribing such threats is not unconstitutional for lacking a requirement of immediacy or imminence. Thus, threats may be constitutionally prohibited even when there is no immediate danger that they will be carried out.” (People v. Hines (1997) 15 Cal.4th 997, 1061 [64 Cal.Rptr.2d 594, 938 P.2d 388] [quoting In re M.S. (1995) 10 Cal.4th 698, 714 [42 Cal.Rptr.2d 355, 896 P.2d 1365], citation and internal quotation marks removed, emphasis in original]; see also People v. Gudger (1994) 29 Cal.App.4th 310, 320–321 [34 Cal.Rptr.2d 510]; Watts v. United States (1969) 394 U.S. 705, 707 [89 S.Ct. 1399, 22 L.Ed.2d 664]; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, 1027. [↩]

Penal Code 69; CALCRIM No. 2651, Trying to Prevent an Executive Officer From Performing his or her Duty [↩]

Someone commits an act willfully when he or she does it willingly or on purpose. CALCRIM 2651 [↩]

A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. CALCRIM 2651 [↩]

In order to be “performing a lawful duty,” an executive officer, including a peace officer, must be acting lawfully. In re Manuel G. (1997) 16 Cal.4th 805, 816–817 [66 Cal.Rptr.2d 701, 941 P.2d 880]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. [↩]

The defendant does not have to communicate the threat directly to the intended victim, but may do so through someone else. The defendant must, however, intend that (his/her) statement be taken as a threat by the intended victim. People v. Gutierrez (2002) 28 Cal.4th 1083, 1154 [124 Cal.Rptr.2d 373, 52 P.3d 572]. [↩]